Will is the legal declaration of a persons intention which he wishes to be performed after his

death and once the Will is made by the testator it can only be revoke during his lifetime. A person
cannot give his ancestors property in the form of a Will but he can make a Will only of his Self-
Acquired property. A Will does not involve any transfer, nor affect any transfer inter-vivos, but it is
an expression of intending to appoint a person who will look after the properties after his (Testator)
death. A Will regulates the succession and provides for succession as declared by the testator.

Historical Background of Wills: As the time rolled the emergence of the Will became more
popular, Indian Law which is governed under Section: 5 of The Indian Succession Act, 1925
which provides different rules for intestate succession and testamentary succession in India. It applies
to all the communities in India except Muslim community. In India there is a well developed system
of succession laws that governs a persons property after his death. The Indian Succession Act 1925
applies expressly to Wills and codicils made by Hindus, Buddhists, Sikhs, Jains, Parsis and
Christians but not to Mohammedans as they are largely covered by Muslim Personal Law.

Statutory Definition of Will: The term Will is defined under Section: 2(h) of The Indian
Succession Act, 1925, means the legal declaration of the intention of a testator with respect to his
property which he desires to be carried into effect after his death. A testator is authorised with a
power to appoint any person as beneficiary of his Will whereas Section: 5 deals with the law
regulating succession to deceased persons moveable and immovable property

Meaning of will: A Will or testament is a legal declaration by which a person, the testator, names
one or more persons to manage his/her estate and provides for the transfer of his/her property at the
time of death. A Will can be made by anyone above 21 years of age in India. A Will is a statement
made by a testator in the written form stating the manner in which his estate/property must be
distributed after his death. A Will being a testamentary document comes into effect after the death of
the testator and if the person dies without writing any Will then he is said to be have died intestate.
The person in whose favour the testator bestows the benefits called beneficiary or legatee. A Will is
otherwise called as Testament.

Features of A Valid Will: There are certain characteristics which should be included in the
instrument of will such as :-

The Name of The Testator: The name of the testator should be mentioned accurately without any
error in initials, spelling or grammatical mistake so that it will not affect the instrument of Will. The
name of the testator can also be clarified by looking into his birth certificate or any school
certificates.

Right To Appoint Legatee: The testator is having absolute right to appoint any person as a legatee
or beneficiary of a Will and legatee should execute the Will carefully and in accordance with the law.

To Take Effect After Death: A testator who is having power to make the Will during his lifetime,
but it will take effect only after his death. A gift made by a person during his lifetime and will take
effect during his lifetime, cannot be considered as a Will.

Revocability Under The Law: In general a Will made by the testator can be revoke at any time
during his lifetime and testator can choose any other person as his legatee. There may be chances
where a testator wishes to bring some alterations in the Will then he can make some necessary
amendments in the prepared Will which is otherwise called as Codicil. A third party can not file a
civil suit against the testator on the ground of cancellation of the Will. A Will made by the testator
may be irrevocable in some cases where an agreement is entered into contrary to the Will, may bind
the testator.

Intention of The Testator supreme: The testator of the Will has right to revoke Will at any time
which can only be proved by the intention of the testator that whether he is intending to revoke the
previous testamentary instruments made by him or he can state in his Will that This is my last Will
then it can be presumed that all the earlier testamentary instruments has been revoked.

The Declaration to be Last Will: A person as testator has power to make declaration of Will
unnumerable times but it is always the last will of testator which will prevail. The words I declare
this to be my last will need not be stated in the instrument of the Will. Once the Will is made by the
testator Inserting of words Last and Only will at the time of death it can be presumed that all the
previous Wills will get revoked and fresh Will has to be effected.

Lost Subsequent Will: Mere loss of the original Will does not operate a revocation but it has to
be inferring by the stringent evidence to prove its revocability and a testator must show the genuine
reasons for the loss of the Will. Once it is proved that a original will is lost then Subsequent Will
will be valid.

Kinds of Wills: A testator who has right to make a Will for the future benefits of his family
members which will take effect after his death, the there are certain types of Wills which has to be
looked into:

1. Privileged Wills: As it can be understood from the word privilege provided to certain persons. A
privileged Will is one which is made by any soldier, airman, navy persons, mariner who are willing
to dispose of their estate during their course of employment. A soldier includes officers and all other
rank officers of service but does not include a civilian engineer employed by the army, having no
military status. A soldier while making an instrument of Will must have attained the age of 18 years
and where a will made by the soldier is in the oral form, will be valid only for a month though a
written Will always remain operative. A privileged Will may be revoked by the testator by an
unprivileged Will or codicil, or buy any act expressing an intention to revoke it and accompanied by
such formalities as would be sufficient to give validity to a privileged Will, or by the burning, tearing
or otherwise destroying the same by the testator.

2. Unprivileged Wills: Wills executed according to the provisions of Section 63 of the Indian
Succession Act, 1925 are called Unprivileged Wills. An unprivileged Will is one which is created by
every testator not being a soldier, airman, mariner so employed. An unprivileged Will like Codicil
can be revoked by the testator only by another Will or by some writing declaring an intention to
revoke the same and to be executed in the manner in which an unprivileged Will can be executed
under the Act or by burning, tearing or destroying of the same by the testator or by some other person
in his presence and by his directions with the intention of revoking the same.

Who Can Make Will: Every person who is competent to contract may make a will but he must be
major, sound mind and willing to write a Will. Any person who is the sole owner of a self-acquired
property can bequeath by way of will. A person of unsound mind can also make a will but only in
lucid intervals. A Will cannot be made by some persons i.e. minors, insolvent, persons disqualified
under any law by the court. A Will executed by a minor is void and inoperative though a testamentary
guardian can be appointed for the minor to dispose off the property. A Will can be made by the deaf
and dumb person by showing consent through writing or gestures in sign language. Nothing prevents
a prisoner or alien in India from drawing a Will.

For Whom The Will Can Be Made: Any person capable of holding property can be a legatee
under a will and therefore a minor, lunatic, a corporation, a Hindu deity and other juristic person can
be a legatee. Sections 112 to 117 of Indian Succession Act, 1925 put some restrictions on the
disposition of property by will in certain cases. Dispositions of property by will in some cases have
been declared void. If the minor person has been named as legatee by a testator then a guardian
should be appointed by the testator himself to manage the bequeathed property.

What Can Be Bequeath In A Will: Any movable or immovable property can be disposed off by a
will by its owner, that property must be a self acquired property of that person and it should not be an
ancestral property of the testator. According to Section: 30 of Hindu Succession Act, 1956 provides
that any Hindu may dispose off by will or other testamentary disposition any property, which is
capable of being so, disposed of by him in accordance with law.

General Procedure To Make A Will: A Will should be prepared with utmost care and must
contain several parts to make a complete Will though there is no defined format for making a Will
but a general procedure should be adopted while writing a Will by the testator which includes:

1. Declaration In The Beginning: In the first paragraph, person who is making a Will, has to declare
that he is making this Will in his full senses and free from any kind of pressure and undue influence
and he has to clearly mention his full name, address, age, etc at the time of writing the Will so that it
confirms that a person really wishes to write a Will.

2. Details of Property and Documents: The next step is to provide list of items and their current
values, like house, land, bank fixed deposits, postal investments, mutual funds, share certificates
owned by testator. He must also state the place where he has kept all the documents if the will
documents are under safe custody of the bank then testator has to write details about the releasing of
the Will from the bank. Here it is the most important duty of the testator to communicate the above
matter to the executor of the Will or any other family members, which will make the Will valid after
testator death.

3. Details of ownership By The Testator: A testator while making a original Will should
specifically mention that who should own his entire property or assets so that it will not affect the
interest of the successors after his death. If testator wishes the name of the minor as beneficiary then
a custodian of the property should be appointed to manage the property.

4. Attestation of the Will : At the end, once the testator complete writing his Will, he must sign the
will very carefully in presence of at least two independent witnesses, who have to sign after his
signature, certifying that the testator has signed the Will in their presence. The date and place also
must be indicated clearly at the bottom of the Will. It is not necessary that a person should sign all the
pages of the Will instrument but he must sign to avoid any legal disturbances.

5. Execution of A Will: On the death of the testator, an executor of the Will or an heir of the
deceased testator can apply for probate. The court will ask the other heirs of the deceased if they have
any objections to the Will. If there are no objections, the court will grant probate .A probate is a copy
of a Will, certified by the court. A probate is to be treated as conclusive evidence of the genuineness
of a Will. In case any objections are raised by any of the heirs, a citation has to be served, calling
upon them to consent. This has to be displayed prominently in the court. Thereafter, if no objection is
received, the probate will be granted and It is only after that Will comes into effect.

Registration of Wills: According to the Section: 18 of the Registration Act, 1908 the registration
of a Will is not compulsory. Once a Will is registered, It is a strong legal evidence that the proper
parties had appeared before the registering officers and the latter had attested the same after. The
process of registration begins when a Will instrument is deposited to the registrar or sub-registrar of
jurisdictional area by the testator himself or his authorised agent. Once the scrutiny of Will
instrument is done by the registrar and registrar is satisfied with all the documents then registrar will
make the entry in the Register-Book by writing year, month, day and hour of such presentation of the
document and will issue a certified copy to the testator. In case if registrar refuses to order Will to be
registered then testator himself or his authorised agent can institute a civil suit in a court of law and
court will pass decree of registration of Will if court is satisfied with the evidence produced by the
plaintiff. A suit can only be filed within 30 days after the refusal of registration by the registrar. If the
testator willing to withdraw the Will after the process of registration then a sufficient reason has to be
given to registrar, if satisfied he will order for the registration of Will.

Revocation of Wills: A Will is liable to be revoked or altered by the maker of it at any time when
he is competent to dispose of his property by Will. A Will can be revoked by testator of the Will at
any point of time which can be classified into two aspects such as:-
 Voluntary Revocation: A testator who wishes to revoke his original Will which is made by him on
a specified date and time, he can make revocation of the will himself by writing a subsequent Will or
codicil duly executed and by destruction of the previous will, means by burning, tearing, destroying
or striking out the signature of the original instrument of a Will.

Involuntary Revocation: According to the Section: 69 of the Indian Succession Act, 1925 which
deals with revocation of will by the testators marriage, however this provision does not apply to
Hindus. Section 57 of the Indian Succession Act clearly states that a testators marriage will not make
the Will invalid.

Probate: It is the copy of the will which is given to the executor together with a certificate granted
under the seal of the court and signed, by one of the registrars, certifying that the will has been
proved. The application for probate shall be made by petition along with copy of last Will and
testament of the deceased to the court of competent jurisdiction. The copy of the will and grant of
administration of the testators estate together, form the probate. It is conclusive evidence of the
validity and due execution of the will and of the testamentary capacity of the testator. A probate is
obtained to authenticate the validity of the will and it is the only proper evidence of the executors
appointment. The grant of probate to the executor does not confer upon him any title to the property
which the testator himself had no right to dispose off which did belong to the testator and over which
he had a disposing power with a grant of administration to the estate of the testator. Probate
proceedings cannot be referred to Arbitration. The probate court (whether it is the District Court or
High Court) has been granted and conferred with exclusive jurisdiction to grant probate of a Will of
the deceased.

GROUNDS FOR CHALLENGING THE VALIDITY OF A WILL Under English law a

person who makes a Will (the testator) can decide to leave their assets to whomever
they wish when they die, however unpopular that decision may be with disappointed
relatives (although the Court can override the terms of a Will in certain limited
situations under the Inheritance (Provision for Family and Dependants) Act 1975.
However, the validity of that Will can be challenged on any of the following grounds:-
Lack of due execution A Will must be in writing and signed by the testator (or
signed by someone else in the testators presence and as instructed by the testator)
in the presence of two witnesses, who must also sign the Will in the presence of the
testator. Lack of testamentary intention You would have to show that the testator
had not intended to make a Will. It is usually clear on the face of the Will that it is
designed to take effect as a Will so this ground is rarely used. Lack of testamentary
capacity The testator had to be capable at the time that the Will was executed of
deciding to make a Will and deciding to leave his assets in the way set out in the
Will. If he was unable to make that decision for himself because of an impairment of
or disturbance in the functioning in his mind or brain (whether because of mental
illness or because he was under the influence of alcohol, drugs or medication) he
would not have had sufficient capacity to make a valid Will. Lack of knowledge and
approval If the testator had testamentary capacity and the Will has been duly
executed the Court will presume that the testator knew and approved the contents of
the Will unless the circumstances surrounding the preparation of the Will cause the
Court to be suspicious (e.g. because the main beneficiary under the Will prepared
it). Undue influence The burden of proof would be on you to show that the testator
had been unduly influenced by a third party to make his Will in the terms that he had.
Fraud or Forgery The burden of proof would be on you to establish that a Will was
forged (i.e. someone other than the testator signed the Will) or was made as a result
of a fraudulent act (i.e. the testator was misled into making his Will on the terms he
did). Revocation If, after making his Will, the testator destroys the original, makes a
later Will or marries, that Will will have been revoked and will not be valid.
Importance of Evidence In the case of any challenge to the validity of a Will the key
witness the testator will obviously not be available to give evidence. Accordingly,
obtaining evidence from other sources (e.g. others recollections; documents etc) is
crucial. If a solicitor drafted the Will, asking to see their file is a good starting point.
Time Limits for challenging a Will There is no statutory time limit for claims to
challenge a Will. However, in the event of inexcusable delay, a substantial lapse of
time (with knowledge of the potential claim), or acceptance of a benefit given under
a Will, the Court could conclude that the claim should not be allowed to proceed.
What happens if the challenge is successful? If the Wills validity is successfully
challenged the testators assets will be distributed in accordance with the testators
previous valid Will or (if there is no previous valid Will) the intestacy rules. Lack of
Capacity A valid will requires that the decedent possessed "testamentary capacity,"
sometimes referred to as having a "sound mind," at the time the will was made. The
decedent must also have met the state's minimum age requirement. Challenging a
will on the basis of capacity typically requires showing that the decedent did not
understand the nature and extent of the property or the identity of natural heirs.
Typically, such a challenge requires medical evidence showing mental impairment.
Undue Influence A challenge of undue influence means the decedent did not make
the will of free choice, but solely due to the improper influence of another person. A
common situation that leads to such a challenge is where a lone sibling cares for an
infirm parent, and the caregiver sibling receives a greater portion of the parent's
estate than other siblings. This is particularly true if the parent has changed his will
while under the care of the sibling and if this fact was kept secret from the other
siblings. Fraud, Mistake, or Other Factors A will can be challenged for fraud, such as
when pages have been inserted after the decedent signed the will or the decedent's
signature is forged. If the will was not executed properly, with only one witness
signature when two are required, for example, the will can be challenged as invalid.
Sometimes a will that has been previously revoked is mistakenly (or purposefully)
submitted for probate. This version will be rejected when the superseding will is
provided. Challenges Are Handled in Probate Court You challenge a will by filing an
appropriate petition in the state probate court that has control over the decedent's
estate. The type of petition, the basis for the challenge, and the likely results depend
on the state law where the court is located. Each state's law has its own rules, which
can differ greatly. These include the deadline for filing your challenge and whom you
must notify regarding your challenge. Violating these rules can delay and increase
the expense of your challenge, or result in it being lost. Disadvantage of Challenging
a Will Challenging a will because you believe your inheritance should be greater
usually involves a risk a violating the "no-contest clause" that is typically found in a
will. If your challenge fails, the will is valid and the no-contest clause will prevent you
from receiving the inheritance left to you in the will. State law varies regarding the
conditions under which a no-contest clause is valid, so it is important to know the law
in your state before challenging a will.